Criminal practice

with Robert Lithgow


This is my last column in the NZLJ after seven years and it starts as it began, that is with bewildered fury at the appellate Courts’ failure to protect accused people and those sentenced to ever-increasing jail terms.

My first Court of Appeal case was in 1987: R v Waaka [1987] 1 NZLR 754. Waaka stuck up for his younger brother when he was being hassled by police in Cuba Street, Wellington. He believed police were not allowed to do what they were doing, and he was probably right. The case, traversing a range of Commonwealth jurisprudence to that date, held that the question of whether an officer was or was not acting in the execution of duty was an ingredient of the offence of assault on police in execution of their duty. Absurdly and without the glimmer of rational analysis, the Court substituted common assault. Nearly 20 years later, and from time to time in between, they pull the same stunt. Uphold the legal challenge but provide no help to the client at all.

I have come to see, with unfamiliar clarity, a proposition that has haunted me over that entire time. It is this: the New Zealand appellate Courts do not perform the function that the public think they perform, and which Parliament and the Courts themselves pretend they perform. That is,.they do not, and will not, perform a quality control examination of the trial process and therefore do not, and bluntly refuse to, provide a “fail-safe” mechanism for the criminal process. A “fail-safe” process is one that accepts human and systemic and institutional frailty as a fact of life, and provides processes by which such failures fall into remedial hands.

This is the standard that the Courts impose on all other sectors of society but fail to even attempt themselves. If the decisions of the Court of Appeal were the decisions of say, the Health and Disability Commissioner or The Ombudsman, they would be ridiculed on radio and television- That is

because the people on the receiving end are real people who react on their own behalf when issues are avoided and facts distorted. With the Courts, the clients are in jail, and the lawyers are not permitted to comment in that direct way and must go back and face the Courts the following day. And so we lawyers are cowards by our own vain ambitions, and charmingly called “hopes of preferment”. We kid ourselves if we think the robust criticism and self-examination that is exhorted from other professions is part of the legal world.

In order to accept my thesis you first have to consider whether you believe the criminal trial process, with trial by a jury of amateur Judges who are told the rules of the game mainly at the end of play, is a fundamentally rough and ready one. Second, you need to believe that putting a man (overwhelmingly a man) in a cage, for years, is a serious matter. From there, you can probably accept that an independent-minded quality control system might be a good idea. You may also see grave risks in having a significant number of appellate Judges who have never appeared for a person at risk of imprisonment or worse, who even boast at never having had a personal client.

I was sent, out of the blue, an article being a 1972 speech by Lord Goodman to the Law Society of Scotland. His basic theme was that in his life at the Bar the substantive changes in the practice of the law were nil. Zero, And so it is with appeals.

In 1998 1 complained to the President of the Court of Appeal, by letter, for the first and only time, that the processes employed in the run up to the appeal itself were unfair. The President refused to see me and I was required to attend on the managing Judge of the particular case, in his Chambers. It was an unhappy event reminiscent of school and being told off. I asked Henry J what he expected counsel to do if, when they sought to

discuss these issues, they were treated in this way. He said “you take such action as you see fit”. I was still seething about that when Bernard Robertson rang. Would I like to write a column for the Law Journal on criminal law developments? I thought that I would,

       Over that period the festering grievances of ex parte dismissal of appeals wound its way to the Privy Council. The decision of R v Taito [2005] 2 NZLR 815 found the whole process illegal and discriminatory against the poor. Most people would see that as a humiliation or at least a call for close examination of the internal culture of the Court of Appeal and its processes. More or less the opposite happened. The Court itself got to re-jig its own base and rules according to its own lights. When the Supreme Court was created, it was a clone of the previous arrangement and had the same gene pool. ­I now give a case example with a

profoundly disturbing underlying ethos. A Mr Palmer appeared before the Auckland High Court in 1987. His lawyer had appeared for him in the District Court and guilty pleas had been entered to a number of fraud-related charges. They were transmitted to the High Court for sentence, and, other charges, with varying degrees of conformity to the Summary Proceedings Act, were also sent along. On the morning of sentencing Palmer got beaten up in prison and was concussed. Then his lawyer departed and he had to act for himself. He sought to withdraw the pleas. The High Court Judge, at the Crown’s suggestion, considered all of this a desperate device to play for time, although contemporary documents cast some doubt on that. The pleas were not reversed. He was convicted and sentenced to a record sentence for the then emergent offence of GST fraud. His case was dismissed ex parte by the Court of Appeal. He got another go because of Taito.











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       I argued Palmer’s appeal In 2005 and the net result was that a rehearing was granted in the High Court, 18 years after the event. The Dominion Post recently published an article about foreign words unknown to English but demonstrably useful to our culture. It identified a German word “scheissenbedauern” as meaning the disappointment one feels when things go better than expected. And so it was here, but why?

I had argued, amongst other things, that Palmer was entitled to a lawyer at the time that he was at risk of conviction, and could not be imprisoned if he was not. This is because the then applicable s.10 of the Criminal Justice Act 1985 said so. The modern equivalent is s 30 of the Sentencing Act. He had to have a lawyer because that is what the legislation said.

The Court was William Young, Chambers and Robertson JJ. Young J said, approaching lunchtime, that the case was covered by R v Condon (CA 373/03, 24 July 2004), which he advised he had recently decided. I said, truthfully, that I had never heard of it. Lunchtime was spent reading. Condon is a case that comes to the illogical conclusion that the words “at the time at risk of conviction” mean at any time after you are charged. This means that if you had spoken to a lawyer, a lawyer had requested disclosure, or a duty solicitor did your first remand, the section was satisfied.

After lunch I was asked was that not a “king hit”? I said “no”. William Young J said “why not?”, and I said “because Condon is wrong, and because it is mean, and because I have a better case”. Whilst discussing why it was wrong and mean it became clear this had already occurred to His Honour but he offered that (approximately): “It was a necessary result because people were suing Judges for sentencing them to jail without a lawyer”.

The case I said was better was R v Page (CA 4/00, 6 June 2004). This was another unsatisfactory case of the type first mentioned in this article because in Page the Court of Appeal, including the now permanent member of the Court, Robertson J, held that Page had been sentenced to imprisonment in breach of his right to a lawyer. The Court gave him a declaration that that was so, using that word “declaration” as a so-called vindication of his rights. No other remedy was provided.

Remain focused. Palmer claimed he didn’t have a lawyer. Condon by William Young J holds any lawyer any time is sufficient. Page by Robertson J and others declares that to be a breach of a right tinder s 1.0 of the Criminal Justice Act. When asked what I wanted them to do about it I submitted that Condon was wrong and did nothing to affirm rights under the New Zealand Bill of Rights Act or the plain, if incon­venient, meaning of the then applicable 10 of the Criminal Justic Act. Further, Page was correct, pre-existing and not cited in Condon (or apparently considered). Judges from both cases were present in Palmer. I therefore suggested Condon should be dumped if for no other reason than that it clearly was wrong, or on the basis that it was per incuriam as it did not take into account Page and the binding declara­tion. Note also, the Court of Appeal has always said it could overturn itself albeit by a bigger Court (five or seven).

On 6 October 2005 Palmer CA1O9/02 (CA83/38) was delivered. I thought it would either be allowed or at a minimum dismissed; either way the conflicting Court of Appeal cases would be resolved or explained. Likewise, although I will save you the boring details, there was an argument that there were two conflicting CA cases on the issue of IRD secrecy provisions in the prosecution of GST offences by an outside agency eg police. I had forgotten all about the Condon impetus arising from people suing Judges as just one of those things you wish you hadn’t heard.

The decision remitted an iS-year-old case back to the High Court at Auckland for rehearing notwithstanding the accepted position in the Court of Appeal was that most of the High Court, Crown and defence files had been irretrievably lost, probably destroyed. I thought it was bizarre that the fact that Palmer had been beaten up in prison on the morning of his case was seen by the Court as the line of least resistance. This relatively obscure part of the case effectively meant that the other matters of importance remained forever undecided.

Having expressed disappointment to anyone who would listen that the Condon argument had not been confronted I was told of a recent unreported decision from Hansen J in the Christchurch High Court that had “heroically” declared the Court of Appeal per incuriam in Page. I get this

decision off the internet and it is the very Page himself suing the District Court Judge on the authority of the Court of Appeal’s declaration: Page ii Sazoiders (CIV 2004-14-000583, 29 September 2005). The Crown had moved to strike the case out. The High Court had held that Condon was correct because R v Long [1977] 1 NZLR 169 and Parkhill ii Minister of Transport [1992] 1 NZLR 555 had not been before the Court of Appeal when Page was heard. I, however, still had the Page case books which show that Long and Parkhill had both been cited and provided.

Do you follow that? Page says you must have a lawyer just as the Criminal Justice Act 1985 so clearly says. He then sues the trial Judge. Along comes Mr Condon with a similar problem and for the irrelevant and unstated reason that people are suing Judges the strained reasoning in Condon is extruded. Along comes Palmer the two earlier cases are irreconcilable and a Judge from each Court is there on the Palmer Bench and the matter fully confronted. If inexplicably Condon was to survive it would be there for the Supreme Court to choose between the two diametrically opposed Court of Appeal decisions. Meanwhile back in Christchurch (29 September 2005) Page has his civil case struck out because a High Court Judge says the Court of Appeal in Page’s criminal appeal was wrong. ~The Court of Appeal seven days later, after four months of ruminating and pondering, avoids the issue entirely and consigns Palmer and the right to counsel to the black hole of an 18-year-old rehearing application with most of the file lxii ss ing.

It was only by chance that I happened to have the old Page case books and all the pieces of the jigsaw on my floor. I took it badly, and still do. I have given away my appeal practice. I don’t reckon it is worth the grief anymore. I don’t think the Court tries hard enough to be good at its allotted task, I think the Judges do what they want, and decide cases for irrelevant reasons.

Some people, some Judges, say I have a chip on my shoulder about the Court of Appeal. That would mean I have an inherently unreasonable resentment. Well, what do you think?

My own idea is that the Court of Appeal, with the help of the Crown, would assure all those placed in a






The New Zealand Law Journal December 2005                                        CRIMINAL PRACTICE


concrete cage that their trial met the minimum standards guaranteed by the Bill of Rights and would sign off the case as fit and proper, like the QC sticker you get on other consumer goods and some services. They, Judges and prosecutors, are after all bound to the Bill of Rights by force of law. Defence counsel are not. But the appellate Courts again and again make it clear that is not their role and they don’t want it to be so. Just ask yourself this simple question: are you proud of our appellate Courts?


Rn La Roche (CA 200/04, 13 Septem­ber 2005) (originally CA 80/99)


This case that got me started with NZLJ was finally heard and delivered on 13 September 2005. The appeal was dismissed and the appellant remains convicted of murder. It provides a useful analysis of the law of provocation where provocation, in the ordinary sense of the word, comes from life’s trials and tribulations, and

in particular by being excluded from any role in your children’s welfare by the Family Court. There is a specific statutory exception for the provocation Courts themselves can provide. Obviously involvement in the Family Court can and has contributed to the loss of control by many but that cannot found provocation as a matter of law. Further, probably, a party who is the beneficiary of the Court’s view of matters usually cannot thereby be provocative.


R v R (CA 291/05, 27 October 2005) [suppression orders pending trial]


This was a pretrial appeal where the High Court had admitted evidence of a confession and reconstruction of the offence (murder alleged). The defence lawyer had directly forbidden police to have any contact with his client. Police recognised the difficulty that presented but ultimately, by various events, including a big dose of family cooperation and an artificial

distinction about what topics were within and without defence counsel’s prohibition, the accused ended up talking to police at length and helping them prepare the case against him. Admittedly the accused himself kind of allowed this to happen albeit he was never told by police about what his counsel had requested.

What the Court did was to fashion a doctrine of implied acceptance (of the prohibition on contact) by police. It is noteworthy that there is no straightforward line of authority to say that when the lawyer says no contact that means no contact. This may be the start of such a line, and is an important case.

As this is a pretrial decision of the Court of Appeal there is no further appeal to the Supreme Court. Nor could the accused have appealed if he had lost, because the Supreme Court has interpreted its legislation to say it is so. The Judges may come to regret that decision made so early in their Court’s life.


Hogan v Ministry of Social

Development (HC, Napier CRI-2005-

441-24/28, 22 July 2005, Gendall and

McKenzie JJ)


While I am in this mood I want to have a go at sentence appeals. I use as an example a decision of the full Court of the High Court on .five appeals for so-called benefit fraud.

The local lawyers got together a group of (mainly) women sentenced to prison and argued that it should not be so. I start with the proposition that if New Zealand is a village, Hawkes Bay is a hamlet and resident District Court Judges can, and in some cases do, have their own way of doing things. Not in this case, however. It is a feature of District Court life that sometimes sentencing decisions on appeal are best left for “general guidance only”. That is because if the Court of Appeal was to be followed literally, the prisons would not only be overflowing as they currently are, but subject to something of a human tsunami.

The most obviously dysfunctional case of this type remains R v Terewi [1999] 3 NZLR 62 in respect of cannabis. Terewi provides (entirely unasked and at the behest of the Court

of Appeal itself, and in direct contradiction to the Misuse of Drugs Act which provides a presumption of imprisonment for Class A and B dealing hut is silent on Class C, and in the face of ambivilence by police and public) that .iy commercial component to growing cannabis will result in jail. The Chief Justice attempted her own tempering of that decision in a later Court of Appeal case, but was quickly shut down.

In the case of benefit fraud the various High Court decisions would make you think you to go to jail hut the reality is that lots and lots don’t. So many times it has been said that, like all sentencing, it is not the raw value, it is the total circumstances. But in Hawkes Bay they decided that over $15,000 means jail.

This is the kind of thing the High Court Judges endorsed from other judgments:


[35]         It is frequently submitted that a mitigating feature common to fraud cases such as those before the Court is that the proceeds of offending are spent on providing for the family. That may be more easily said than established because in many instances the family has

the benefit of two incomes (whether by work and illegal benefit or by support from a partner or a husband and an illegal benefit). It is, however, said that women offenders in this category have to turn to fraud because they have partners, the existence of whom they do not disclose, who do not provide for them. If it be that dishonesty is not motivated simply by greed, then it may be a relevant factor in sentencing, but nevertheless as was said in R v Osborne (CA486/04, 14 February 2005) a lack of personal benefit in itself is insufficient to justify a non-custodial sentence. The Court of Appeal there said at para [6]:


There is not much doubt that much, perhaps most, of the money Ms Osborne obtained went on what could broadly be regarded as the necessities of life for herself, her children and her partner. But likewise, it is clear that the Judges in the District Court and High Court recognised the nuances of the situation. Sentencing is often necessarily carried out without detailed enquiry into the

The New Zealand Law Journal December 2005


minutiae, which collectively provide the context to the offen­ding. Broad-brush assessments are necessary. A sentencing approach which treats as relevant the amount of money which was obtained by fraud seems to us to be acceptable.




[40]      ... Offenders ought not generally seek refuge from a sentence of imprisonment behind the tender age of their children if there is a need to deter other offenders from a view that prison would not be visited on them simply because they happen to have small children. For example, see R v Howard (CA 315/99,2 December 1999). The size of the benefit may be dependent upon that fact of children being in the family. The family situation of an offender including the well-being of children must of course form part of the personal circumstances being only one of the number of relevant factors that a Judge must consider. The weight afforded to it must depend on all the circumstances of the case. As said in R v Prescott (CA 360/00, 1 November 2000) the effect of an appellant’s imprisonment on an offender’s children is a “sad but inevitable consequence of offending at this level”. Of course the effect of a sentence on children mitigates against the length of any custodial term imposed and the common granting of leave to apply for home detention illustrates an approach by District Court Judges to ameliorate          

against the severity of short terms of imprisonment.


Out of the five cases dealt with and in 48 paragraphs the High Court did not manage to identify a single mitigating factor. As a technical matter the Judges also say that the sole question is whether the sentences are manifestly excessive. They then employ the old trick that sentencing is a discretionary exercise and it has to be shown to be clearly wrong. In fact that is not the law. The law is s 121 of the Summary Proceedings Act when the appeal is to the High Court which provides a huge range of options and is the most critical and under-utilised set of tools available to an appellate Judge. Section 119 says any such appeal is to be by way of “rehearing”, but the Courts have simply made that meaningless and prefer the language of “an exercise of discretion” rather than looking at the matter afresh.

Returning to the language where do Judges learn to talk like that? Where does this mean-spirited language come from? Why, if money is spent only on the necessities of life, is jail still necessary? How does home detention ameliorate? The official line is that Judges can’t consider it when deciding whether to impose imprisonment. As home detention is up to the Parole Board, it is entirely out of the sentencing Judge’s hands.

Here the Court reckoned it was better to send some women to jail than release them on home detention where they are prisoners in their own home, more so than they were as mothers of young children in the first place. Better

to stay in jail doing nothing I can promise you, nothing at all rather than imposing community work where they actually do something useful.

If appellate Judges do not take the lead and use all the variations of the Sentencing Act constructively then they are defaulting on their duty to use the legislation given. They are defaulting to the incessant one way auction of the Sensible Sentencing Trust and Crown submissions that every crime is worse than the one before, society is getting worse, criminals today are worse than criminals yesterday.

Judges steadfastly refuse to take into account the conditions to which sentenced prisoners are subjected. The prisons are full to overflowing. Prisoners are subjected to ever increasing cell-time because prison officers react to overcrowding and understaffing by demanding lockdowns to give them a proper break in a tense situation. Prisoners ate held in vans to avoid being counted in the muster. Historically that is, when periods of history are viewed by pen or film Judges and sentences are inextricably linked to the prison conditions applicable in the era. We live in a cruel era and the Judges refuse to take responsibility for their part in it but responsibility will inevitably be ascribed to them by history, as night follows day.

The only thing I can say with certainty, as I relinquish this column after seven years and after 20 years of appeals, is that despite my best efforts the appellate process remains as unmoved as Lord Goodman’s world was unchanged by his life at the Bar. So there we are. -

The New Zealand Law Journal December 2005